Hardy v. Tilton

68 Me. 195, 1878 Me. LEXIS 63

• Court: Supreme Judicial Court of Maine
• Decided: May 8, 1878
• Status: Published

Opinion

Walton, J.

The question is whether an officer, who has collected money on an execution, can apply it in satisfaction of another execution against the person for whom it was collected, both executions being in his hands for collection at the same time.

We think not. The attempt has often been made to attach or levy upon money thus situated; but it has uniformly been held that money, while in the hands of an officer, who has collected it under legal process, is in custodia legis, and not the subject of attachment or levy.

The leading case in this country was decided by the supreme court of the United States, as long ago as 1801. A sheriff having collected money on an execution, levied thereon an execution which he held against the person for whom the money was collected. The court held that the levy could not legally be made. Turner v. Fendall, 1 Cranch. 117.

Many similar decisions have been made by the state courts. Willes v. Pitkin, 1 Root, (Conn.) 47. Prentiss v. Bliss, 4 Vermont, 513. First v. Miller, 4 Bibb, (Kentucky) 311. Dubois v. Dubois, 6 Cow. 494. Reddick v. Smith, 4 Illinois, 451. Dawson v. Holbrook, 1 Ohio, 135. Crane v. Freese, 1 Harrison, (N. J.) 305. Conant v. Bicknell, 1 D. Chipman, (Vt.) 50. Farmers' Bank v. Beaston, 7 Gill & Johnson, (Md.) 421. Jones v. Jones, 1 Bland, (Md.) 443. Blair v. Cantey, 2 Speers, (S. C.) 34. Burrell v. Letson, 1 Strob. (S. C.) 239. Clymer v. Willis, 3 Cal. 363. Reno v. Wilson, Hemp. (Ark.) 91. Dawson v. Holcomb, 1 Hammond, (Ohio) 275. Wilder v. Bailey, 3 Mass. 289. Thompson v. Brown, 17 Pick. 462.

Some of these cases relate to attempts to attach the money on writs; others to efforts to reach it by trustee process; others, where, as in this ease, attempts were made to levy executions upon it; but the same principle runs through them all; namely, that money collected by an officer on legal process, while it remains in his hands, is to be regarded as in custodia legis, and not the subject of levy or attachment in any form.

Exceptions overruled.

Appleton, C. J., Dickerson, Barrows, Danrorth and Peters, JJ., concurred.